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District Court of Appeal, Second District, Division 1, California.

Roba WEAVER, Plaintiff and Appellant, v. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, Defendant and Respondent.

Civ. 26206.

Decided: October 15, 1962

Gerald B. Parent and Louis J. Renga, Santa Barbara, for appellant. Samuel B. Stewart, Robert H. Fabian and George L. Beckwith, Los Angeles, for respondent.

This is an appeal from the judgment entered after defendant's demurrer was sustained and plaintiff declined to amend the complaint.

On October 10, 1961, plaintiff filed a complaint for damages, wherein it was alleged in pertinent part as follows:


‘That at all times hereinafter mentioned, the plaintiff was a depositor in the Santa Maria Branch of the Bank of America, hereinafter referred to as ‘Defendant Bank’, and Defendant Bank agreed at all times to pay out the amount so deposited by plaintiff, in accordance with checks drawn by plaintiff on said * * * Bank when duly presented.


‘That on December 15, 1960 the plaintiff drew a check in the sum of $32.68 wherein and whereby she directed Defendant Bank to pay to the order of J and E Tire Shop said sum of $32.68 and delivered said check to said J and E Tire Shop.


‘That at the time of the delivery of said J and E Tire Shop, and when same was presented to Defendant Bank as hereinafter alleged plaintiff had on deposit with Defendant Bank a sum in excess of $32.68 and Defendant Bank was justly indebted to plaintiff in said amount.


‘That on the 15th day of December, 1960, said check duly endorsed by J and E Tire Shop was presented to Defendant Bank for payment and although plaintiff at said time had on deposit with Defendant Bank a sum in excess of the amount of said check, Defendant Bank wrongfully refused to pay the same, and said check was returned to said J and E Tire Shop with a bank marking of ‘account closed’ thereon.


‘That Defendant Bank at the time of wrongfully refusing to pay said check, marked, or caused to be marked upon the face of said check in conspicuous characters the letters ‘account closed’; that said letters or characters when written upon the face of a check by a banker means that the maker of the check has no account in the bank, and said letters and characters were so understood by J and E Tire Shop, the payee of said check when the same was returned to him from Defendant Bank.


‘That said J and E Tire Shop did upon receipt of said check marked ‘account closed’, and in reliance upon and as a proximate result of said markings, take said check to the Police Department of the City of Taft, County of Kern, State of California, and did swear out a warrent [sic] for the arrest of plaintiff.


‘That thereafter, the police of the City of Santa Maria did cause the plaintiff to be arrested, imprisoned and brought before a majestrate [sic] for arrignment [sic] on a charge of petty theft.


‘That at the time of the heretofore mentioned wrongful dishonor, Defendant Bank and its employees knew or should have known that the issuance of a check upon a bank when the maker thereof has no account is a public offense which notoriously and frequently results in the arrest and imprisonment of the maker of the check.


‘That notwithstanding said knowledge on the part of Defendant Bank and its employees said Defendant Bank wrongfully, negligently and wilfully refused to honor said check.


‘That as a direct and proximate result of Defendant Bank's wrongful and negligent dishonor of said check, plaintiff's reputation was damaged, her health impaired, and plaintiff was arrested and imprisoned causing injury to plaintiff in the sum of $50,000.00.’

Plaintiff prayed for damages in the sum of $50,000.00, costs of suit, and for such other and further relief as to the court might seem proper.

On October 20, 1961, defendant filed its demurrer on the grounds that said complaint failed to state facts sufficient to constitute a cause of action. (Code Civ.Proc. § 430, subd. 6.)

By minute order dated October 30, 1961, defendant's demurrer was sustained without leave to amend. The judgment from which this appeal is taken was entered November 1, 1961.

The rules relating to the trial court's determination of a demurrer on the ground that a complaint does not state facts sufficient to constitute a cause of action and which govern a reviewing court in considering an appeal from a judgment entered on the sustaining of a demurrer on that ground are as follows: it is assumed that the facts alleged are true and can be proved; defects in the complaint which do not affect the substantial rights of the parties are disregarded; the allegations must be liberally construed with a view to substantial justice between the parties; and, all that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. (Hill v. City of Santa Barbara, 196 Cal.App.2d 580, 585, 16 Cal.Rptr. 686.)

In support of the trial court's determination, defendant bank relies upon two cases—Hartford v. All Night and Day Bank (1915) 170 Cal. 538, 150 P. 356, L.R.A. 1916A, 1220, and Bearden v. Bank of Italy (1922) 57 Cal.App. 377, 207 P. 270.

In the Hartford case plaintiff had a savings account with defendant bank but did not have a commercial checking account. Plaintiff drew an ordinary commercial check in favor of himself. He then negotiated it through the endorsement of Maphet and Jones. Defendant bank refused payment, endorsing upon a slip of paper which it attached to said check, ‘No Account.’ Following the rejection, Maphet swore to and filed a criminal complaint charging plaintiff with a violation of Penal Code section 476a. Plaintiff was arrested and at the hearing the charge was dismissed and plaintiff exonerated. Subsequently plaintiff brought an action against defendant bank alleging that he had sustained injury to his reputation and good name, and that grievous mental suffering was inflicted upon him by reason of the arrest and detention. Judgment was rendered in favor of plaintiff. The Supreme Court in reversing the judgment first indicated that the bank was not negligent. It then stated at pages 540–541 of 170 Cal. at page 357 of 150 P. in part as follows:

‘But, setting aside from our consideration the question of the negligence of the bank, and assuming further that it was the duty of the bank to have paid this check when and as it was presented, nevertheless for two quite independent reasons this judgment may not be sustained. We have adverted to the fact that the bank is charged merely with the negligent failure to pay a money demand. Section 3302 of the Civil Code in express terms lays down the measure of damage for such a failure. The applicability of this section to cases like this has by this court upon more than one occasion been declared and made, * * *. The second legal principle, whose application necessarily works a reversal of this judgment is that the damages claimed are in no legal sense the proximate result of the act of negligence complained of. It did not necessarily follow that plaintiff would be arrested and charged with a felony because of the bank's act. There was no direct casual connection between the two things. There was an interruption and the intervention of an entirely separate cause, which cause was an independent human agency acting with an independent mind.’ (Emphasis added.)

The second case relied upon by defendant, Bearden v. Bank of Italy, supra, 57 Cal.App. 377, 207 P. 270, is in the words of plaintiff ‘factually on all fours with the instant case.’ The court in the Bearden case cited and relied upon the Hartford case for the proposition that the arrest of the plaintiff for the offense of issuing a check without sufficient funds was not the proximate result of the defendant bank's wrongful refusal to honor the check.

Plaintiff attempts to avoid the impact of the Hartford and Bearden cases by asserting that the above two cases sounded in contract while his complaint sounds in tort. He relies upon Abramowitz v. Bank of America, 131 Cal.App.2d Supp. 892, 281 P.2d 380.

In Abramowitz plaintiff brought action to recover damages for the wrongful dishonor of a check drawn by him upon his account with defendant bank at a time when he had standing to his credit an amount in excess of the face of the check. The check was drawn in favor of the vendor under a conditional sales contract, pursuant to which plaintiff was purchasing an automobile, in payment of a monthly installment due thereunder, and as a result of the dishonor of the check the vendor repossessed the automobile and sold it pursuant to the terms of the contract. In affirming the judgment in favor of plaintiff it is aptly stated at page 895, 281 P.2d at page 382 as follows:

‘[3] While it is true that plaintiff might have brought his action upon contract, he was not restricted to this remedy. The prevailing view and that obtaining in this State is that in such circumstances he may, as plaintiff has done here, sue for damages for the injury resulting from the refusal to pay the check, in which case the action sounds in tort. (Citations.)’ (See Allen v. Bank of America, 58 Cal.App.2d 124, 127, 136 P.2d 345.)

Similar to the case at bar, defendant in the Abramowitz case placed reliance upon the Hartford case and the Bearden case. In rejecting the applicability of the two cases the learned judge stated at page 897 of 131 Cal.App.2d Supp. at page 383 of 281 P.2d as follows in pertinent part:

‘* * * [T]he Hartford case was decided prior to the enactment of section 3320 [i. e. Civil Code], and the District Court of Appeal, in the Bearden case, seemingly was not mindful of the fact that section 3320 had been enacted in the meantime, for no mention thereof appears in its opinion. Moreover, it would appear that both courts assumed that the action before it was one in contract, for otherwise section 3302 [i. e. Civil Code] could in no event be applicable as it was there held. We need not, however, undertake to consider the soundness of the conclusion there reached, see, however, Collins v. City Nat. Bk. & Tr. Co., 1944, 131 Conn. 167, 38 A.2d 582, 153 A.L.R. 1030 in view of section 3320, which is a legislative recognition that a depositor whose check is wrongfully dishonored may thereby sustain ‘actual damage’ beyond the amount of the check.'

The older concept that an independent intentional intervening act necessarily breaks the chain of causation has been replaced by a more enlightened view. The modern approach is predicated upon the test of foreseeability—where the risk of harm was reasonably foreseeable the independent intervening force does not break the chain of causation. (See Mosley v. Arden Farms Co., 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872; Richardson v. Ham. 44 Cal.2d 772, 285 P.2d 269; Terrell v. Key System, 69 Cal.App.2d 682, 688, 159 P.2d 704.)

We are not prepared to hold as a matter of law that a bank cannot foresee the risk of harm attendant to its wrongful dishonor of a check. On the contrary, as stated by Dean Prosser in his article ‘Proximate Cause in California’ in 38 California Law Review 369, 411, ‘Arrest under a bad check law appears to be an obvious risk against which the bank has undertaken to protect the depositor.’

For the reasons stated the judgment is reversed with directions that defendant be permitted to answer within 10 days after issuance of remittitur.

FOURT, Justice.

WOOD, P. J., and LILLIE, J., concur. Hearing granted; McComb, J., not participating.

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